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Secondary legislation

Fundamental rights considerations can also be found in secondary legislation and administrative law. For example, anti-discriminination clauses can be part of public procurement rules to mainstream equality into public works.

Example

In Sweden, the experimental use of anti-discrimination clauses in public procurement has been effective. Companies and organisations that do not hire women, or people from minority groups, risk losing contracts or public procurement opportunities. This procedure is quite common in the United States but had not been used much in Sweden.

When the tool was introduced as part of the Swedish gender mainstreaming programme, it helped making gender mainstreaming a reality.

Source: Local focus group 2011, Huddinge, Sweden

Learning Point

Fundamental rights’ implementation can benefit from being integrated into other legislative instruments. The more fundamental rights are anchored in enforceable legislation, the more rights on paper become reality in practice.

Example

In the United Kingdom, County Councils have set up methods to ensure that public officials adapt their practices to the Human Rights Act and the European Convention of Human Rights. One way to achieve this is through using checklists that require civil servants to consider how their actions might impact on the rights of service users.

Lancashire County Council has made a human rights checklist part of the report which civil servants must present to their superior when recommending a decision or action:

Has the author of the report taken the Human Rights Act into account? If not, the item must be returned to the author.

Is the proposed recommendation or action likely to have any Human Rights Act implications?

Identify the Convention right or rights likely to be affected.

Outline briefly any consultation with interested parties.

Identify groups or individuals likely to be affected.

Explain why an action or recommendation is necessary by referring to the actual Convention/Act.

What is the legal authority for taking a decision/action?

What is the aim of the recommendation/action and what are the potential effects?

Does the report take into account any human rights issues highlighted above?

Assess the impact of administrative decsions on fundamental rights
The introduction of a fundamental right checklist can assist public officials with making an impact assessment of administrative decisions and mitigating potential adverse effects on fundamental.